PERB Bars Decert Petition as Untimely

In County of Amador (2013) PERB Dec. No. 2318-M, the Public Employment Relations Board (“PERB”) eliminated a local decertification ordinance finding it facially illegal.  PERB replaced the illegal ordinance with PERB’s decertification regulation. 

Under the Meyers Milias Brown Act (“MMBA”), a public agency can adopt a local ordinance regarding certification and decertification, but the ordinance cannot violate the MMBA.  PERB has authority to adopt certification and decert regulations, but such PERB regulations only apply where a public agency has no ordinance on that subject.  In other words, PERB regulations can “fill the gap” where the ordinance is silent.  County of Amador dealt with the question of what to do with the gap left when PERB surgically removes an offending regulation of an otherwise legal ordinance. 

A rival Union filed a decertification petition during the life of a contract between the County and the existing-Union, which had been the exclusive representative of the employees for many years.  The County had a local ordinance that permitted filing decertification petitions only within 12 months of the date of the original certification of representation.  By contrast, the MMBA prohibits a challenge to representation within 12 months of certification.  Thus, the County’s local rule directly violated MMBA, making it unenforceable.

The question for PERB, then, was what rule to apply in the gap.  The local ordinance contained no other provision regarding the timing of a decertification petition.  PERB applied its “contract bar” regulation, which allows a decertification petition only during the 90 to 120 day window period before the expiration of the contract. 

As a result, PERB ruled the decertification petition in question was untimely under PERB’s contract bar rule and ordered the County to dismiss the petition. County of Amador was handled by Matt Gauger of Weinberg, Roger & Rosenfeld. 

For further information regarding certification regulations applicable to the public sector, please contact your labor law counsel. 

By Sean Graham | July 23, 2013

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